The U.S. Supreme Court on May 22 issued a brief order permitting President Donald Trump’s firing of Gwynne Wilcox from the National Labor Relations Board (NLRB) while litigation over his removal authority continues. The court also permitted the removal of a member of the Merit Systems Protection Board (MSPB), Cathy Harris, during litigation.
While the NLRB will continue to lack a quorum as a result of this order, much — including investigations — can still go on at the agency and the vast majority of cases can continue as usual, according to Camille Olson, an attorney with Seyfarth in Chicago, San Francisco, and Los Angeles. So, employers should continue to comply with the National Labor Relations Act.
The Supreme Court used its emergency docket to stay March 4 and March 6 orders of a lower court — the U.S. District Court for the District of Columbia — that had blocked Harris’ and Wilcox’s firings respectively. “Because the Constitution vests the executive power in the president, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents,” the Supreme Court said.
The high court added that the stay reflected its judgment that the government is likely to show that both the NLRB and MSPB exercise considerable executive power. “But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for...
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